Conservative Media's Fact-Challenged Comparison Between David Petraeus And Hillary Clinton

Conservative media are likening Democratic presidential candidate Hillary Clinton's email use as secretary of state to retired Gen. David Petraeus' illegal mishandling of confidential information, claiming a “double standard” because Petraeus was convicted of a misdemeanor, while Clinton is not under criminal investigation. But that comparison ignores the central fact that Petraeus knowingly handed over classified materials to his biographer, while Clinton followed State Department rules concerning private email use and was unaware of any classified information in her unmarked email correspondence.

Inspectors General Investigating State Department's Planned Release Of Clinton Emails From Private Account. As the State Department prepares to release thousands of emails turned over by Clinton from her time as secretary of state, the inspectors general of the intelligence community and Justice Dept. are looking into whether any classified information might be made public. As Vox reported: "[T]he State Department has Freedom of Information Act experts sifting through the documents to make sure that no information will be released that is either classified or sensitive":

It's hard to foul up a major story as badly as the New York Times did with last week's big -- and erroneous -- scoop that two US inspectors general had asked the Justice Department to open a criminal investigation into whether Hillary Clinton mishandled sensitive or classified information in using a personal account to email with State Department officials and friends.

As it turned out, most of the important points in the story were wrong -- really wrong.

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The State Department has been ordered by a federal judge to make public the 55,000 pages of emails Clinton turned over to the agency. So the State Department has Freedom of Information Act experts sifting through the documents to make sure that no information will be released that is either classified or sensitive (meaning not technically classified but also not covering material that the government doesn't want in the public domain).

This has caused a bureaucratic turf war between the department and the intelligence community, which believes at least one email that's already been released contains classified information and that hundreds of others in the full set may also have material that's not ready for public consumption.

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Now, according to the Times and other publications, the IG team is asking the Justice Department to get involved in reviewing whether State has mishandled the emails. If Clinton was sending information that was, or should have been, classified -- and knew that it was, or should have been, classified -- that's a problem. But no one has accused her of that so far. Given the anodyne nature of what she sent in the emails we've already seen, it's entirely possible, perhaps even likely, that any sensitive information was sent to Clinton, not by her (though it's not clear whether forwarding such emails would constitute a legal issue for her).

The intelligence community tends to have a pretty broad definition of what should be withheld from the public, and the fact that agencies are fighting over what State should release is prima facie evidence that the question of what should be classified doesn't have a cut-and-dried answer. [Vox, 7/28/15]

Fox Correspondent: There's A “Double Standard” Between Treatment Of Petraeus And Clinton. Fox's chief intelligence correspondent Catherine Herridge claimed on the July 31 edition of The Kelly File that the lack of a criminal investigation into Clinton's email use “strongly suggests a double standard” between Clinton and Gen. David Petraeus, who was prosecuted for leaking classified information to his biographer:

HERRIDGE: If you do a search of the more than 1,300 documents dropped today, using a code for classified information, you'll find 37. This, after the intelligence community's watchdog concluded there are potentially hundreds of classified documents on Clinton's personal server.

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HERRIDGE: Court documents filed in the prosecution of former CIA Director David Petraeus strongly suggests a double standard. The retired general was prosecuted for the unauthorized removal, sharing and storage of classified information held at his home, quote “The FBI executed a court-authorized search warrant at the Petraeus residence and seized the black books from an unlocked drawer in the first-floor study of the Petraeus residence.” [Fox News, The Kelly File, 7/31/15]

Fox Business Host: Clinton Did “Exactly What General Petraeus Was Accused Of.” On the July 31 edition of Outnumbered, Fox Business Network's Melissa Francis compared Clinton to Petraeus, saying, "[S]he has done the exact same thing."

FRANCIS: This is exactly what General Petraeus was accused of. It does seem like, as you look through the guidelines, that she has done the exact same thing, and that they have the right to both secure this thumb drive that they're talking about and also the server. So I don't see any way, as you comb through the elements, that this is an unequal treatment between these two cases. [Fox News, Outnumbered, 7/31/15]

Washington Examiner's Susan Ferrechio: “The Differences Are Not All That Great” Between Clinton And Petraeus. On the July 31 edition of The Real Story With Gretchen Carlson, Susan Ferrechio of The Washington Examiner compared Clinton's emails to Petraeus' criminal case, while host Gretchen Carlson claimed there was a “double standard” :

CARLSON: Critics are now comparing Clinton to David Petraeus. There has been no raids of Clinton's house. Is there a double standard here?

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FERRECHIO: But it's really hard not to just see the stark comparison here. Everybody is bringing up the General Petraeus case. He was prosecuted for storing classified material in his home. He was criminally charged and convicted, and he had to lose his job as head of the CIA, and he ended up on probation and paying a hefty fine. Yet, if you look at what Mrs. Clinton is doing, the differences are not all that great between the two parties, although he also did give classified information to Paula Broadwell, his biographer and his mistress. [Fox News, The Real Story, 7/31/15]

Petraeus Admitted To Giving Biographer “Highly Classified” Black Books. The New York Times detailed how Petraeus reportedly told his biographer Paula Broadwell that some of the information contained in the black books detailing activities on the war in Afghanistan he was giving her was “highly classified” :

As part of the plea agreement, Mr. Petraeus admitted that he gave his lover, Paula Broadwell, who was writing a biography about him, black notebooks that contained sensitive information about official meetings, war strategy and intelligence capabilities, as well as the names of covert officers.

According to court documents, he discussed the black books during an interview that Ms. Broadwell taped with Mr. Petraeus while she was working on the biography, telling her, “They are highly classified, some of them.”

Three weeks later, he gave her the notebooks. [The New York Times, 4/23/15]

Petraeus Admitted To Delivering Classified Documents Containing Code Words To Unauthorized Private Residence. The factual basis that accompanied the plea agreement in Petraeus' case, which Petraeus acknowledged contains the facts as they occurred, lays out how Petraeus handed over to Broadwell classified books containing “code word stuff” while she was staying at a private home in Washington, D.C. that was not an approved location for the storage of classified information:

On or about August 4, 2011, after defendant DAVID HOWELL PETRAEUS returned permanently to the United States from Afghanistan, during a conversation, recorded by his biographer, defendant DAVID HOWELL PETRAEUS stated that the Black Books were “highly classified” and contained “code word” information:

Biographer: By the way, where are your black books? We never went through,..

PETRAEUS: Umm, well, they're really - I mean they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.

On or about August 27, 2011, defendant DAVID HOWELL PETRAEUS sent an e-mail to his biographer in which he agreed to provide the Black Books to his biographer.

On or about August 28, 2011, defendant DAVID HOWELL PETRAEUS delivered the Black Books to a private residence in Washington, D.C. (the “DC Private Residence” ), where his biographer was staying during a week-long trip to Washington, D.C. The DC Private Residence was not approved for the storage of classified information. [U.S. v. Petraeus, Factual Basis in Support of Plea Agreement, 3/3/15]

Petraeus “Unlawfully And Knowingly” Removed Classified Documents. Petraeus was found to have “unlawfully and knowingly” removed classified documents “without authority” before moving them to “unauthorized” locations:

Between in or about August 2011, and on or about April 5, 2013, defendant DAVID HOWELL PETRAEUS, being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information of the United States, and did unlawfully and knowingly remove such documents and materials without authority and thereafter intentionally retained such documents and materials at the DC Private Residence and the PETRAEUS Residence, aware that these locations were unauthorized for the storage and retention of such classified documents and materials. [U.S. v. Petraeus, Factual Basis in Support of Plea Agreement, 3/3/15]

Petraeus' Confession Of Intent To Mishandle Classified Information Was Central To Finding Of Guilt

Between in or about August 2011 and on or about April 5, 2013, defendant DAVID HOWELL PETRAEUS, being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information of the United States, and did unlawfully and knowingly remove such documents and materials without authority and with the intent to retain such documents and materials at unauthorized locations, aware that these locations were unauthorized for the storage and retention of such classified documents and materials;

All in violation of Title 18, United States Code, Section 1924. [U.S. v. Petraeus, Bill of Information, 3/3/15]

Prosecution Under Statute Turns On Satisfaction Of “Intent Element.” The essential element to violating laws such as 18 U.S.C. § 1924 is the “intent element” and potential damage to national security:

18 U.S.C. Section 1924 prohibits the unauthorized removal of classified material by government employees, contractors, and consultants who come into possession of the material by virtue of their employment by the government. The provision imposes a fine of up to $1,000 and a prison term up to one year for offenders who knowingly remove material classified pursuant to government regulations concerning the national defense or foreign relations of the United States, with the intent of retaining the materials at an unauthorized location.

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In light of the foregoing, it seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate many of the documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated. [Congressional Research Service, Criminal Prohibitions on the Publication of Classified Defense Information, 9/9/13]

In Contrast, Clinton Had Authorization To Use Personal Email Account

NY Times: “There Has Never Been Any Legal Prohibition Against” Using Personal Email Accounts. Despite having previously scandalized Clinton's use of private emails as “alarming,” the Times later clarified that “there has never been any legal prohibition” against the practice and that “Members of President Obama's cabinet” use a “wide variety of strategies” to handle their emails:

Members of President Obama's cabinet have a wide variety of strategies, shortcuts and tricks for handling their email, and until three months ago there was no law setting out precisely what they had to do with it, and when. And while the majority of Obama administration officials use government email to conduct their business, there has never been any legal prohibition against using a personal account. [The New York Times, 3/13/15, via Media Matters]

National Law Journal: Clinton “Obeyed The Law.” In a March 9 article, The National Law Journal explained that legal experts believe Clinton “technically obeyed the law” when she used her own email account. The Journal went on:

“There's not any blanket prohibition on any federal employee from using a personal email account to conduct government business,” said Potomac Law Group partner Neil Koslowe, a former Justice Department special litigation counsel who has worked on cases involving the Federal Records Act.

If it turns out that Clinton destroyed documents or mishandled classified information, that would be another story -- such violations can be criminal. However, the State Department has said there are “no indications” that Clinton improperly used her email for classified information.

The New York Times on March 2 reported that Clinton relied on her personal email account exclusively when she ran the State Department between 2009 and 2013, thwarting government record-keeping procedures.

National Archives and Records Administration regulations require emails to be “preserved in the appropriate agency recordkeeping system,” but when Clinton was in government there was no specified deadline for turning them over.

In 2013, David Ferriero, who heads the archives, testified before the House Committee on Oversight and Government Reform that the agency “discourages the use of private email accounts to conduct federal business, but understands that there are situations where such use does occur.”

Following that hearing, according to a statement from the archives, Congress amended the Federal Records Act and the Presidential Records Act in November 2014 -- 21 months after Clinton left government -- to “prohibit the use of private email accounts by government officials unless they copy or forward any such emails into their government account within 20 days.” [The National Law Journal, 3/9/15]

State Dept: Clinton Preserved And Provided Emails In Line With 2009 Regulation And How We Handled Records At The Time. At the March 3 daily press briefing, State Department deputy spokesperson Marie Harf explained that Clinton turned over 55,000 pages of documents as part of the State Department's “process of updating our records management” and emphasized that Clinton is the only former secretary of state to have done so. From Harf's briefing:

HARF: When in the process of updating our records management - this is something that's sort of ongoing given technology and the changes - we reached out to all of the former secretaries of state to ask them to provide any records they had. Secretary Clinton sent back 55,000 pages of documents to the State Department very shortly after we sent the letter to her. She was the only former Secretary of State who sent documents back in to this request. These 55,000 pages covered her time, the breadth of her time at the State Department. [State Department Daily Press Briefing, 3/3/15]

State Department Rules Allowed Clinton To Use Own Email Account. Citing a State Department source, CNN reported that “Clinton was not automatically in violation of State Department policy when she exclusively used a private email during her four years as America's top diplomat.” CNN further reported that 2005 guidelines insisting that employees use government-provided email “were filled with exemptions that could allow Clinton to use a private account.” [CNN, 3/6/15]

And There's No Evidence That Clinton Intentionally Or Knowingly Emailed Classified Information

Clinton: “I Am Confident That I Never Sent Or Received Any Information That Was Classified At The Time.” Clinton told reporters on July 26 that she never sent or received information that she knew was classified at the time:

Democratic presidential candidate Hillary Rodham Clinton said she never knowingly sent or received classified information using her private email server and did not know what messages were being cited by intelligence investigators as examples of emails containing classified information.

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“I am confident that I never sent or received any information that was classified at the time it was sent and received. What I think you're seeing here is a very typical kind of discussion, to some extent disagreement among various parts of the government, over what should or should not be publicly released,” she said. [Associated Press, 7/26/15]

Intelligence And Justice Inspectors General Agree: No Emails Were Marked Classified At The Time Clinton Sent Or Received Them. While the intelligence inspector general found four emails from the State Department that possibly should have been marked classified, he made clear that none of the emails were officially classified at the time Clinton sent or received them:

The intelligence inspector general, I. Charles McCullough, and his counterpart at the State Department, Steve Linick, said that McCullough's office found four emails containing classified information in a limited sample of 40 emails.

[...]

In its letter to congressional oversight committees, the inspector general's office said that it was concerned that “these emails exist on at least one private server and thumb drive with classified information and those are not in the government's possession,” Andrea Williams, a spokeswoman for McCullough, said earlier this week.

The letter said none of the emails was marked “classified” at the time it was sent or received but that some should have been handled as such and sent on a secure computer network. [Associated Press, 7/26/15]

Because Of The Differences, Classified Materials Experts Dismiss Comparison Between Clinton's Email And Petraeus' Crime

Director Of Project On Government Secrecy: “There's No Comparison Between The Clinton Email Issue And The Petraeus Case.” StevenAftergood told The Washington Times that "[e]veryone agrees that there was no information in the Clinton emails that was marked as classified," and therefore Clinton's actions bear no resemblance to Petraeus's:

While officials combing tens of thousands of emails that moved through Mrs. Clinton's server have pointed to the presence of “hundreds” of pieces of classified information -- apparently none of the messages had any official classification markings on them.

It's a situation that has triggered heated debate over the extent to which such information wasn't necessarily classified at the time Mrs. Clinton was emailing it.

“To the best of my understanding, there is no comparison between the Clinton email issue and the Petraeus case,” says Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists. “Everyone agrees that there was no information in the Clinton emails that was marked as classified. So it would be difficult or impossible to show that those who sent or received the emails knowingly or negligently mishandled classified information.” [The Washington Times, 8/2/15]

Government Secrecy Expert: “There's No Case” Against Clinton If She Didn't Knowingly Misuse Classified Information. William Jeffress, an attorney who has handled government secrecy cases, told Time:

Legally, the question is pretty clear-cut. If Clinton knowingly used her private server to handle classified information she could have a problem. But if she didn't know the material was classified when she sent or received it she's safe.

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Clinton has explicitly and repeatedly said she didn't knowingly send or receive any classified information. “The facts are pretty clear,” she said last weekend in Iowa, “I did not send nor receive anything that was classified at the time.” Intelligence Community Inspector General I. Charles McCullough III, disagrees, saying some of the material was in fact classified at the time it was sent. But in his letter last week to Congressional intelligence committee leaders, McCullough reported that, “None of the emails we reviewed had classification or dissemination markings.” And there has been no indication Clinton knew she was sending and receiving anything classified.

The public doesn't yet know the content of the classified emails, and the State Department and the inspectors general have tens of thousands still to review. If evidence emerges that Clinton knew she was handling secrets on her private server, “She could have a problem,” says William Jeffress, a leading criminal trial lawyer at Baker Botts who has represented government officials in secrecy cases. Barring that, says Jeffress, “there's no way in the world [prosecutors] could ever make a case” against her. [Time, 7/29/15]

National Security Law Expert: “It Isn't Enough For Hillary To Have Sent Classified Information Over A Private Server. She Must Have Known It Was Classified.” Syracuse University Law Prof. Nathan Sales, a national security expert, explained that to be legally at fault, Clinton must have “knowingly” mishandled classified information, a standard her conduct does not reach:

The federal statute on mishandling classified information makes it a crime to “knowingly remove[] [classified] documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.”

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The e-mails may not have had the standard markings indicating the presence of classified information - confidential, top secret, and so on. But they apparently did contain information derived from other materials that were so marked.

The e-mails were, in other words, derivatively classified. This doesn't necessarily mean that Secretary Clinton broke the law. The key word in the statute is “knowingly.” It isn't enough for Hillary to have sent classified information over a private server. She must have known it was classified. (This is what did in General Petraeus -- he admitted knowing that his black books contained classified information.) [National Review, 8/1/15]